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Can A Woman Rape?

By Edikan Ekanem

There have been several but serious controversies on the issue of capacity to rape. People have castigated that the Nigerian criminal administration of justice seeks to only protect the interest of women under the Nigerian criminal jurisprudence, working at the detriment of men.

It has become a matter of recent debate on the subject matter, series of arguments have also developed on the issue as to whether a woman can rape. Putting it simply, can a man be raped? Can a woman be called a “rapist”?

This pointed but concise work will seek to elucidate and expound on the issue of whether or not a woman can rape. The questions that should be borne in mind are: which enactment regulates the offence of rape? How is rape defined under the Nigerian criminal jurisprudence? These questions will be answered seriatim in the course of this work.

Section 357 of the Criminal Code Act, Cap C38, defines rape as follows: “Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threat or intimidation of any kind, or by fear of harm, or by means of false or fraudulent representation as to the nature of the act or, in the case of married woman, by personating her husband, is guilty of an offence which is called rape.”

The above have provision succinctly stated the gender that can be raped when it uses phrases as ‘Any person who has unlawful carnal knowledge of a woman or girl, her consent’ and ‘in the case of married woman, by personating her husband’ This has shown that the offence is primarily against women and not men.

Noting further, in discussing the offence of rape as contained in section 357 of the Criminal Code, there are basic points that must be discussed concurrently like capacity and carnal knowledge. Elaborating on these points will ipso facto enlighten the contentions.

In an offence of rape, carnal knowledge of the woman by the man must be proved. Section 6 of the Criminal Code defines carnal knowledge and it states that when the term carnal knowledge or the term carnal connection is used in defining offence. It has been held that even the SLIGHTEST PENETRATION OF THE VAGINA will be sufficient to constitute the act of sexual intercourse, stating that proof of the rupture of the hymen is unnecessary to establish the offence of rape.

Two questions arise here: who penetrates during sexual intercourse? Is it the man or woman? Who produces hymen (sperm) during sexual intercourse, is it the man or woman? It is very clear the clear that is the man. So can we say that a woman has the capacity to rape under this law? Will the Nigerian criminal jurisprudence accommodate such? No is the answer.

The definition of rape in section 357 makes no reference to a woman or girl being in the position to rape. Apart from the fact that biologically, only the males are equipped to achieve penetration by virtue of section 6 of the Criminal Code, it is impossible for a woman to metaphorically possess the sexual dispositions of a man will instigate rape.

It should be however noted that, it will not be esoteric establishing the fact that a woman can be still be guilty in the charge of rape as a principal offender under section 7 or 10 for aiding, counselling or procuring the commission of the offence of rape or as accessory after the fact.

There are other conflicts the on conundrum emanating from the provisions of Violence Against Persons (Prohibition) Act, 2015. The Violence Against Persons (Prohibition) Act (hereinafter known as ‘the VAPP Act’) came into force on 25thMay, 2015, primarily enacted to eliminate violence in private and public against persons and to provide maximum protection and effective remedies for victims and punishment of offenders .

Section 1(1) of the VAPP Act provides a novel definition of Rape. It states;” A person commits the offence of rape if

He or she intentionally penetrates the vagina, anus or mouth of another person with any other part of his or her body or anything else.

The other person does not consent to the penetration or

The consent is obtained by force or means of threat or intimidation of any kind or by fear of harm or by means of false and fraudulent representation as to the nature of the act or the use of any substance or additive capable of taking away the will of such person or in the case of a married person by impersonating his or her spouse”

This act has done a great job in expanding the frontiers on the offence of rape and employing the bilateral offenders on the offence of rape as against the criminal code.

The questions now are: which enactment among the two prevails as supreme against the other? Which of the enactment is used in courts to prosecute the offenders of rape? It is quite certain that it is the criminal code.

The weakness of the VAPP Act makes it powers limited and to some extent inapplicable. This can be seen primarily in the jurisdiction of this said enactment. Section 27 of the Act confers on the High Court of the Federal Capital Territory Jurisdiction to entertain matters arising from the VAPP Act or to grant an application made pursuant to the said Act. The confirmation of jurisdiction on the High Court of the Federal Capital Territory by the VAPP Act means that no other Court can exercise jurisdiction at first instance over the provisions of the VAPP Act as against the criminal code.

For now, the principal and primary law used for prosecution in the Nigerian criminal system (southern) is the criminal code and it remains the supreme till its powers are curtailed. The evolution of the VAPP Act does not in any way invalidate the stand of the Nigerian criminal code.

In conclusion, as long as the provisions of the Criminal Code are concerned, it is inappropriate for us to say that a woman has the capacity to rape. It is summited with respect that the word “woman rapist” has no place in our own criminal system. Though women can be charged jointly under section 7 and 10 of the criminal code, the offence should never be attributed to women.

Edikan Ekanem is a student of University of Uyo, a contemporary writer and a columnist. He can be reached at 08130015006 or [email protected]